AFL-CIO lawyer warns of incoming fire from High Court majority

WASHINGTON—In the top U.S. Supreme Court case in the tribunal’s 2020-21 term directly affecting workers, they dodged a right-wing bullet.

But a veteran pro-worker attorney, AFL-CIO General Counsel Craig Becker, warns workers to expect more hostile incoming fire from the High Court bench.

Speaking from his decades of labor law practice, the former National Labor Relations Board member adds the justices have been consistently anti-union for 50 years.

The bullet came from a California case, Cedar Point Nursery v Hassid. The United Farm Workers and the California Agricultural Labor Relations Board lost on the specific issue: Getting limited access to farm fields for union organizers because the fields were the only places organizers could reach the workers.

Becker says Cedar Point is the latest in a string of anti-worker rulings the justices have handed down. The problem is so bad now, says Becker, an Obama-era NLRB member, that workers now do not trust the court. He cited his own experience over 40 years of labor law.

“The labor movement—its leaders, its lawyers, and its members—no longer believe labor organizations and working people seeking to act together to improve their wages, hours and working conditions can obtain a fair hearing before the (Supreme) Court,” Becker testified to Democratic President Joe Biden’s commission examining potential reforms at the court. Becker emphasized he is not speaking for the federation.

But noting Republican-named justices have been a majority on the court for 50 years, Becker cited a string of anti-worker rulings stretching all the way back to 1992. He mentioned and footnoted five. He didn’t cite another notable one, Lilly Ledbetter’s pay discrimination case.

The five-man GOP majority ruled Ledbetter could not sue for equal pay discrimination once she found out about it, 20 years after she was hired as a supervisor at a Goodyear tire plant in Gadsden, Ala. She could only sue within the first 180 days of employment, they said.

An absolutely steamed Justice Ruth Bader Ginsburg read a stinging dissent from the bench, an unusual move. At the end of her oration, RBG challenged Congress to fix that wrong. It did, and the Lilly Ledbetter Act, removing the shackles on the right to sue, was the first law Democratic President Barack Obama signed in 2009.

“It cannot be that we are wrong in every labor case that comes before the court,” Becker told the commission. “And if we are receiving a fair and unbiased hearing from the justices, how can it be that the division among the justices is identical each time we appear before the court? I regret to say that only political predisposition can explain that pattern.”

Used a “property rights” excuse

In the Cedar Point case, a coalition of radical right-wing anti-worker organizations, using the excuse of inviolable property rights for bosses and owners, urged the justices to ban not just union organizers from property without compensation, but to let owners ban anybody and everybody from any property anytime. And the GOP Trump regime, then in power, sided with them.

That “takings” ban would have covered everyone from police chasing criminals to wage and hour inspectors checking whether workers were getting paid overtime to safety and health officers making sure farm workers have enough rest, shade, and water so they don’t drop dead from the heat waves engulfing California and the rest of the western U.S. One already has.

In a friend-of-the-court brief, the Service Employees warned of that ban’s threat. Chief Justice John Roberts, writing for the 6-3 majority on June 23, batted the right-wingers down.

“When the government physically acquires private property for a public use, the Takings Clause” of the U.S. Constitution “imposes a clear and categorical obligation to provide the owner with just compensation,” Roberts said. “The government commits a physical taking when it uses its power of eminent domain to formally condemn property.”

When union organizers come onto the farmers’ land, even under the strict and limited rules the California board imposed, California must pay the owners for that physical “taking,” however temporary, Roberts wrote. But calling states’ exercise of law enforcement powers a “taking” didn’t fly with the Chief Justice and his colleagues.

“Many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights,” Roberts wrote. Citing a prior High Court ruling, he added: “The government does not take a property interest when it merely asserts a pre-existing limitation upon the landowner’s title.

“For example, the government owes a landowner no compensation for requir­ing him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place.”

And there are “traditional common law privileges” for government officers to enter private property “in the event of public or private necessity,” such as preventing a disaster or preventing serious harm to people or land. Most important to workers, Roberts declared that when governments issue permits or licenses for land and property use, they can set conditions —and one of them is to let inspectors in, the very issue SEIU raised.

“Under this framework, government health and safety inspection regimes will generally not constitute takings,” added Roberts. Health and safety inspections should be able to satisfy constitutional requirements, and not be takings, he emphasized. Except letting labor organizers onto farmers’ land, even if there was no other way they could contact the workers, didn’t satisfy that rule against takings, he declared. The only way they could come in, the court majority concluded, is if the landowner agreed—and got paid.

The other top case in this term directly involving unions was the court’s ruling on students’ free speech rights on social media. The justices ruled for the Pennsylvania high school student who was passed over—in favor of a first-year student—for the cheerleading team, and who responded with an expletive-filled rant on social media, not on school grounds.

Disciplined with suspension

The school board disciplined Brandi Levy with a suspension and a cheerleading ban. It, of course, argued for control of student speech on social media, with no restrictions on time or place. The nation’s leading teachers union, the National Education Association, mostly sided with that position in a friend-of-the-court brief. NEA said control of student speech on social media is needed to keep classrooms disciplined and student- and learning-friendly.

Lower courts sided with Levy, her parents, and the ACLU, which argued for them. The 3rd U.S. Circuit Court of Appeals in Philadelphia said a school system’s control of a student’s speech stops at the school’s door. Writing for the court majority, Justice Stephen Breyer agreed, with one exception: The school system could regulate student speech outside the school, even on social media, if it was likely to cause violence or disruption.